Follow the Rule of Law

The 2010 midterm elections represent a resounding referendum on the Obama Administration. Voters turned out to repudiate policies with which they disagreed. At the forefront of voter displeasure were the new administration’s massive spending and the ever-burgeoning national debt. However, many voters also expressed concern that the Obama Administration was taking actions that were at odds with fundamental principles of law. The coming year represents an opportunity for the administration to reverse course and adhere more closely to the rule of law.

The rule of law is a key component of the success of any society. In order to plan their affairs, people need to know that they can count on the government and other individuals to follow established and known legal rules and principles. Absent such certainty, the ability to plan for the future breaks down. Corruption and naked power replace law as the rule of decision, with those with the most power shaping the playing field to benefit themselves, even if it upsets settled expectations. As a result, economic investment is discouraged, faith in the government is eroded, and the ability of a society to move forward and grow is impeded.

The administration has an opportunity to reverse this erosion of the rule of law.

This important value has not always received full respect from this administration. In its zeal to further its progressive agenda, it has often sought to circumvent important legal barriers that stood in its way. Thus, for example, the administration effectively nationalized certain corporations in the automotive and financial industries, exercising powers that arguably have no basis in our laws or Constitution. Having done so, the government sought to rewrite parties’ contracts, limit the pay or other compensation of individuals in the private sector, and upset expectations grounded in settled law or the parties’ written agreements.

It then pushed through Congress a massive new healthcare law that, by all accounts, was the result of unprecedented procedural maneuvers, with certain Senators obtaining special deals for their States in exchange for their votes, spurring Attorney Generals from other States to question the constitutionality of the legislation. Likewise, the proposed legislation seeks to compel private individuals to purchase health insurance from private companies–an unprecedented government action–and even purports to block Congress from subsequently repealing certain provisions absent a vote by a supermajority of the Senate. One court has already struck down aspects of the legislation as unconstitutional, observing that the provision requiring individuals to purchase health insurance represents an “unchecked expansion” of government power that is at odds with the Constitution.

Such government actions have already had negative consequences. Private parties are unable to plan, worried about future ramifications of the government’s actions. Public sentiment regarding the direction of the country has turned decidedly negative, focusing on the litany of special deals and bailouts for those who have political power or connections. Finally, when the government has sought to restrict private individuals’ compensation, they have simply quit, unwilling to work for less than what the market is willing to pay them.

The administration has an opportunity to reverse this erosion of the rule of law. However, it is questionable whether it will do so. Already, it has attempted to do by regulation what it could not achieve through legislation, seeking to implement regulations under the new health care law financing end-of-life advisory services even though such measures failed during the legislative process. Government agencies have no authority to regulate where Congress has not authorized them to do so. As with its past actions, the debate over the administration’s most recent proposals is likely to play out in the courts.